Knowing the Code: Wilful Conduct and Moral Turpitude
LACBA Update, September 2001
By Diane Karpman, immediate past chair, LACBA Professional Responsibility & Ethics Committee. Karpman of Karpman & Associates in Los Angeles represents attorneys in disciplinary matters and is an expert consultant and witness on legal ethics issues. The opinions expressed are her own.
Everyone knows that the first section lawyers turn to in the "legal press" is the disciplinary reports, affectionately known as the "people" section. You can get an update on how your classmates are doing or whether certain former opposing counsel have received their karmic justice...yet. When reading those brief summaries of lengthy decisions, remember that certain "codes" are used. If you don’t know the codes, then the meaning of the report is lost. Many common legal words have entirely different meanings when used in State Bar proceedings.
Case reports uniformly characterize the attorney’s conduct as "wilful." Lawyers are only disciplined for "wilful" breaches of the Rules of Professional Conduct or the State Bar Act. The vast majority of lawyers believe that "wilful" describes intentional conduct. In other areas of the law, this is true, but at the State Bar, "wilful" merely means that an event occurred.
According to past decisions of the Supreme Court and State Bar Court, "wilful" means only that the attorney knew what he or she was doing or not doing, and that he or she intended to commit the act or to abstain from committing it. Durbin v. State Bar (1979) 23 Cal. 3d 461. For purposes of State Bar discipline, a wilful violation does not require evil intent, bad faith or even knowledge of the provision that is violated. Therefore, wilful conduct does not require deliberate wrongdoing or a purposeful failure to attend to the duties owed to clients.
There is not a scintilla of malicious intention involved in the State Bar usage of the term "wilful." However, in order to settle or "cut a deal" with the State Bar, lawyers must agree to this awkward characterization of their conduct. To understand the discipline reports, you need to know that attorney X did not really "wilfully" allow his trust account to "dip" on three dates during 1999 to an amount below the five thousand dollars he was holding for a client for six months while seeking to discount the client’s medical bills from medical providers.
Note that subjective intentions of the lawyer can be relevant after the finding of wrongdoing and can aggravate or mitigate the sanction. However, they are not relevant in terms of the discipline report classifying the conduct as "wilful."
Another frequently misunderstood term is the designation of an act involving "moral turpitude." Immediately, the minds of lawyers harken back to law school and Prosser’s definition of a heinous, venal, reprehensible, egregious act, prohibited in all civilizations at all times. But at the State Bar, it is a concept that lacks a precise definition. Moral turpitude may be found not only in attorneys’ violations of their professional duties toward clients but also in violations of professional duties to former clients, adverse parties, third parties, other attorneys, courts, governments or society at large. Moral turpitude is inherent in acts undertaken for the purpose of concealment or other deception. Coppock v. State Bar (1988) 44 Cal. 3d 665.
In requesting a bail reduction for clients, an attorney failed to disclose to a court that he had made two other such motions the same day in the same courthouse that had been denied. The Supreme Court found that this failure to disclose a material fact was as misleading as an affirmative misrepresentation. Di Sabatino v. State Bar (1980) 27 Cal. 3d 159. Gosh, what was the matter with this lawyer? Didn’t he realize that when judges get together, in addition to sports and politics, they discuss what happened in their courtrooms and love to talk about lawyers?
Habitual disregard by lawyers of the interests of their clients can constitute moral turpitude. So also can gross negligence or carelessness, and failing to adequately supervise office staff and work product.
Now that you have the "code," deciphering the disciplinary reports will be crystal clear. They will have the precision and transparency of...well, let’s think of other documents that are often popularly characterized by the media as transparent, like international treaties, and WTO or NAFTA trade agreements.